John J. HALKO, Jr., Appellant,
STATE of Delaware, Appellee.
John M. Bader, of Bader & Biggs, Wilmington, for appellant.
W. Laird Stabler, Jr., Deputy Atty. Gen., and Kenneth W. Lewis, former Deputy Atty. Gen., for the State.
SOUTHERLAND, C. J., and WOLCOTT, J., and MARVEL, Vice Chancellor, sitting.
SOUTHERLAND, Chief Justice.
[54 Del. 182] John J. Halko, Jr., was charged with four violations of the motor vehicle code: (1) driving under the influence of liquor; (2) driving while his license was under a period a revocation; (3) having in his possession a revoked license; and (4) leaving the scene of an accident. He was convicted of the first three charges, and acquitted of the fourth. He appeals.
We consider the evidence in the light most favorable to the State. So viewed, the facts proved are these:
Between 1:00 and 1:30 a. m. on Sunday, October 18, 1959, Edward R. Holler, Jr. was driving easterly on the Boxwood Road in suburban New Castle County. There was only one other car in view on the road, a 1959 Imperial. It was 'weaving all over the road'. Holler followed the car for about a quarter of a mile and then passed it. The driver was slumped over the wheel.
About 1:30 a. m. William D. Forestieri was driving easterly on Boxwood Road and saw what he thought was a 1959 Cadillac 'weaving all over the road'. Forestieri was afraid to pass it, but when it pulled over to the curb near the Conrad School he passed the car slowly. No one was in the car but the driver.
Forestieri continued on the Boxwood Road to Maryland Avenue, a Wilmington Street extending southwesterly into suburban New Castle County. It intersects the Boxwood Road diagonally from northeast to southwest.
The second car pulled away and followed Forestieri. It caught up with him at the intersection and collided with the back of Forestieri's car. It then passed Forestieri's car. In the intersection Forestieri saw the driver in the glare of the streets and of the lights of a gas station. He later identified Halko as the driver.
Halko proceeded easterly on the Middleborough Road, an extension of Boxwood Road. At times he was off the road. He turned left, i. e., north, into the DuPont Road, Forestieri [54 Del. 183] following him. He followed the DuPont Road to Valley Road, where in turning right he collided with a stop sign. He went east on the Valley Road, and Forestieri continued on the DuPont Road north to its intersection with Maryland Avenue. During the time when he was following Halko, Forestieri got Halko's license number. (He apparently reversed two digits of a six-figure number, but this is of no moment.)
Reaching Maryland Avenue he went into the office of the Park Cab Company and reported the matter to Mr. Paul Perry. He told Perry that he would try to find the car. He found it in front of the premises of the H. and S. Manufacturing Company, Halko's company, 15 Brookside Drive. The motor had been cut off, but the head lights were on. Halko was at the wheel, apparently dead drunk. Forestieri returned to Perry's office, and told Perry he would go back to the car and wait. Later Perry also drove to the premises. In due course the police were notified. Two Wilmington police and later two State police arrived. The matter was outside of Wilmington and the State police handled it.
All four officers testified to Halko's condition. He was so drunk he could not be roused by voice, by tapping on the window, or by shaking; he had to be supported. An empty wine bottle was between his legs. The officers tried to question him, but he could say nothing intelligible. He was mumbling about 'a pipe'.
He was taken to the State Police Station. The police found that he had a duplicate of an operator's license that had been revoked. Prosecution followed, first in the Court of Common Pleas and then in the Superior Court.
The defense to the first and second charges, involving the operation of his car, was an alibi. Halko testified he drove from Wilmington that night to his place of business to do some work; while he was there he was on the telephone, on and off, from twelve thirty to one thirty, talking to Russell [54 Del. 184] Lombardi, an employee of his, and also to his former wife. After finishing his work he concluded to wait in his car for Lombardi. When the City Police arrived he 'played possum' to keep out of trouble. This was his story.
Mrs. Halko, Lombardi, and another employee testified in support of the alibi.
Halko's defense to the charge of having in his possession a revoked license was that he had forgotten that he had it.
The jury found him guilty on these three charges.
The ingenuity of counsel presents us with seven alleged errors in the trial. Only one of them has any substantial merit, the objection to the charge to the jury on the defense of alibi. As will later appear, the case must go back for retrial on the first two charges because of error in this matter.
But on the retrial defendants will probably renew some of the points now before us. Hence, for the guidance of the trial court, we shall rule upon certain of these objections, although several of them were not even made at the trial.
I. It is said that the verdict was against the weight of the evidence. The testimony leads us to the contrary conclusion. A summary of the State's case is set forth above. The jury was obviously justified in rejecting the defense of alibi. The defendant's story that he was 'playing possum' when found in the car is demonstrably false.
In stating this obvious conclusion we do not wish to yield assent to the idea that it is this Court's duty to pass upon the weight of the evidence. It would be an exceptional--an extraordinary--case, indeed, to require us to undertake that task.
The argument is wholly without merit.
II. It is said that the defendant was prejudiced by questions put to him by the prosecutor on cross-examination.
[54 Del. 185] The facts leading up to the matter are these:
On October 24, 1958, Halko's license was revoked for a year. On December 9, 1958, it was surrendered to ...